Gawker win still possible – Appeals likely

21/03/2016

Hogan

NEW YORK, March 20, (RTRS): The $115 million a Florida jury awarded to Hulk Hogan on Friday may seem like a big blow to the website Gawker, but the media company could ultimately prevail in its court battle with the flamboyant wrestler, legal experts say.

Hogan had sued the website for posting a video clip in 2012 featuring him having sex with the wife of his then-best friend, the radio shock jock Bubba the Love Sponge Clem.

Both sides cast the case as a crucial test of the balance between the right to privacy and freedom of the press in the digital age, when a celebrity sex tape can reach millions of viewers with one click of a button.

“The jury’s decision is somewhat of a black box,” said Mary-Rose Papandrea, a University of North Carolina law professor who previously represented the National Enquirer, a tabloid known for its aggressive reporting on celebrity scandals. “It will be much more interesting and much more important as a legal issue to see what the appellate court says.”

Ignored

Hogan had argued that Gawker ignored basic journalistic ethics by failing to contact him before publishing and violated his privacy by including several seconds of explicit sexual activity as part of the video excerpt it posted.

“What’s disturbing about Gawker isn’t what they do in a vacuum,” said Kenneth Turkel, one of Hogan’s lawyers, during his closing argument. “It’s how proud they are of it.”

Gawker countered that Hogan’s own penchant for publicly describing his sex life in detail had made the sex tape fair game.

“He has consistently chosen to put his own private life out there, over and over,” Michael Sullivan, Gawker’s lawyer, told jurors on Friday.

Hogan, whose real name is Terry Bollea, testified at trial that he made those comments while in character, not as part of his real-life persona. Gawker’s attorneys argued that Hogan was drawing a meaningless distinction.

David Marburger, a Cleveland attorney who represents media clients, compared Hogan to Donald Trump, another larger-than-life figure who has bragged about his male prowess as part of his public image.

References

In Marburger’s view, a private video of Trump would be newsworthy because of references the Republican presidential hopeful made about his private parts during a presidential debate.

“Regardless of how you judge what’s newsworthy, he’s asked for it,” Marburger said of Hogan. “He’s assumed this risk.”

Gawker has at least some reason to feel more optimistic about its chances on appeal. In 2014, the Florida Second District Court threw out an injunction requiring it to take down the Hogan video that the trial judge had granted.

Clay Calvert, a professor of law and mass communications at the University of Florida and an expert on the First Amendment of the US Constitution, said the size of the verdict was not surprising. He pointed out that broadcaster Erin Andrews recently won a $55 million judgment against a hotel after she was secretly filmed nude through a peephole.

The jury could still add punitive damages next week after both sides have a chance to present more evidence.

But Calvert said a verdict that large was almost certain to be pared back on appeal, if not reversed.

“Juries generally do not like the media,” he said after the verdict. “The appellate court is a little more neutral.”

The site appeared prepared for a loss at trial. Even before the verdict, Gawker said the judge had kept the jury from hearing crucial prior statements by Clem, the wrestler’s former friend, and suggested it was already thinking about its appeal.

“Given key evidence and the most important witness were both improperly withheld from this jury, we all knew the appeals court will need to resolve the case,” the site’s founder, Nick Denton, said after the verdict. A Gawker representative declined to comment on Saturday.

David Houston, one of Hogan’s lawyers, said any testimony from Clem, who was subpoenaed by Gawker only for the judge to quash it, would not have made any difference.

Hogan, 62, wept after the award was announced Friday evening. He was silent as he walked out of the courthouse, clad all in black and wearing sunglasses in the twilight. He didn’t speak to the media, and declined to sign an autograph request from a fan.

Hogan’s team issued a statement: “We’re exceptionally happy with the verdict. We think it represents a statement as to the public’s disgust with the invasion of privacy disguised as journalism. The verdict says no more.”

The verdict and the unsealing of hundreds of pages of documents late in the day capped a three week judicial circus in the sleepy St Petersburg courtroom.

The unsealed documents will undoubtedly be key in Gawker’s appeals process. The evidence was unsealed because a group of media companies, including The Associated Press, sued for access and won. The civil court judge in the case had ruled that the documents be sealed, but an appellate court sided with the media companies, saying they were of legitimate public interest.

The documents outline allegations, facts and conflicting testimony. Among them: assertions that Hogan filed the lawsuit to hide racist comments made on video, that the woman who Hogan had sex with knew it was being filmed, and that Hogan participated in an FBI investigation and sting because he was being extorted.